Nike V. Kasky and the running-but-going-nowhere commercial speech debate

The lawsuit filed by Marc Kasky against Nike illustrates the dangers posed by Supreme Court decisions defining "commercial speech " as a category deserving of some, but not full, First Amendment protection. The category is ill-defined and may be safely abandoned without hampering the regulation of commercial activity. Recent decisions have again shown the path to regulating expressive conduct without violating the First Amendment, and those lessons should be applied in the context of commerce, requiring where expression is at issue satisfaction of either intermediate or strict scrutiny, as appropriate given the purpose of the statute, and sufficient evidence of the underlying offense, including the requisite intent.